Turtle Creek National Bank v. Gretz
Turtle Creek National Bank v. Gretz
Opinion of the Court
ORDER
This action is before the court on the plaintiff’s motion to substitute a party, defendant Madean’s motion to substitute a party, Geraldine Salem’s cross motion to substitute a party, and Geraldine Salem’s motion for leaving stay in effect.
The pertinent part of O.C.G.A. § 53-7-102 provides: “No action to recover a debt due by the decedent shall be commenced against the administrator or executor until the expiration of six months from his qualification.” Though Mrs. Salem had not been named executrix of Fred J. Salem’s estate at the time of her motion, she argues that the action against her as the representative of the estate should be
The court agrees with the plaintiff that § 53-7-102 does not apply in this case. First, Mrs. Salem has not yet, to the court’s knowledge, qualified as executrix of the estate and therefore is in no position to rely on the statute. Second, and more important, the statute should be understood to apply only to the commencement of actions against an executrix within six months of her qualification, not to continuations of actions pending at the time of the decedent’s death. The statute by its terms prohibits only the commencement of an action against an executrix. A parallel statute dealing with actions against representatives of joint obligors likewise prohibits “the bringing of an action against the representative of any estate until six months after the probate of the will.” O.C.G.A. § 9-2-27. Although there are no cases on this particular issue, none of the cases that impose the six-month stay under the statute involve pending actions; all involve the commencement of actions after the death of the party in question. See, e.g., Cannon v. Tant, 229 Ga. 771, 195 S.E.2d 15 (1972); Hader v. Eastman, 124 Ga.App. 548, 184 S.E.2d 478 (1971). In addition, no case dealing with the effect of a party’s death in a pending action applies the six-month stay under § 53-7-102. See, e.g., Chaffin v. Chaffin, 207 Ga. 36, 59 S.E.2d 911 (1950); Kilgo v. Bowman Transportation, Inc., 87 F.R.D. 26 (N.D.Ga. 1980).
For the foregoing reasons, Geraldine Salem’s motion to leave the stay in effect is DENIED.
. In its September 24, 1987 order the court stayed consideration of defendant Salem's motion for summary judgment and motion for leave to file a supplemental brief, as well as consideration of the plaintiff's motion for summary judgment against defendant Salem, due to the Suggestion of Death filed by Salem’s attorney on August 27, 1987.
. Even if the requested stay were granted under the authority of § 53-7-102, it would not apply to defendant Salem’s counterclaim and cross-claim.
Reference
- Full Case Name
- TURTLE CREEK NATIONAL BANK v. Kenn C. GRETZ, Robert R. Madean, Fred J. Salem
- Status
- Published